Terrorist or witness? Ashcroft v. al-Kidd and the material witness detention law

March 30, 2011Duke Law News

Duke Law experts discussed the implications of a controversial terrorism-related case recently heard by the Supreme Court at a March 21 lunchtime event.

Professors Sara Sun Beale, Samuel W. Buell, and Charles J. Dunlap Jr., discussed the material witness statute, prosecutorial discretion, and the possible implications of the case, Ashcroft v. al Kidd, which came before the Supreme Court earlier this month. The central question: whether former Attorney General John Ashcroft could exercise governmental immunity for using the federal material witness statute to detain terrorism suspects in the aftermath of 9/11.

A former Idaho University student who converted to Islam and changed his name, Abdullah al-Kidd, was arrested pursuant to the material witness statute, Dunlap explained. After 15 months of house arrest, the defendant lost his job, his marriage ended, and he lost a scholarship to conduct research in Saudi Arabia. The defendant was never accused of a crime or called as a witness but merely associated with crime by virtue of his name.

The defense did not challenge the constitutionality of the material witness statute, but alleged it’s “‘programmatic’” misuse, as a mechanism to take people into custody, Dunlap said. In response, attorneys representing Ashcroft argued that intent is not a factor as long as his actions were facially valid, and that even were they not facially valid, he was shielded under prosecutorial immunity.

The panelists questioned the procedure of al-Kidd’s detention. “Where was the supervising judge and the counsel during all this?” asked Dunlap. Beale, the Charles L. B. Lowndes Professor of Law, explained that the material witness statute is not available if a witness agrees to testify through a deposition. It is unclear from the case whether al-Kidd was ever asked to do a deposition in the first place or whether this statute was just a pretense to grab him off the street, she said.

Buell, a former federal prosecutor who was immersed in terrorism investigations after the September 11, 2001 terrorist attacks, observed that “nobody wants to be a witness” in these cases. “Prosecutors are not thinking how they can violate someone’s Fourth Amendment rights. They are thinking about possible dangers,” he said. “At the time, it was unknown what the scope of 9/11 would be.”

Dunlap, the former deputy judge advocate general of the United States Air Force, said that in the aftermath of 9/11, people did not care much about the procedure of detaining possible suspects. “As lawyers, we have responsibility to be the voice of reason,” he said.

“After 9/11, there needs to be forward-looking or preventative strategy,” Beale said.

-Lila Zhao ’11